After separation couples need to sort out how to divide their asset pool. This is called a ‘divorce property settlement’.
The only requirement for a divorce property settlement is ‘irretrievable breakdown’ of the marriage. This is proved by a 12-month separation with no likelihood of reconciliation. The court does not examine whose fault it was that the marriage broke down. The divorce application will not resolve issues relating to children or property. You need to make those arrangements with a separate application. The divorce application must show you have made arrangements for the welfare of any dependent children.
After separation couples need to sort out how to divide their asset pool. This is called a ‘property settlement’.
The asset pool comprises all property such as houses, cars, shares, superannuation, liabilities (mortgage, credit cards) and financial resources (family trusts). The property, liabilities and financial resources of the relationship can be in joint names, your name only or your spouse’s name only.
After assessing the contributions made by each party, the Court is required to consider the factors under section 75(2) of the Family Law Act (otherwise known as “future factors”). Some of the “future factors” include –
- The age and state of health of each party
- The physical and mental capacity of each party to obtain employment
- Whether either party has the care of a child under the age of 18 years
- Any child support that has been paid by a party
- Any child support that a party may be liable to pay
- The necessary commitments of each party that enable that party to support themselves, a child or another person that the party has a duty to maintain.
The asset pool comprises all property such as houses, cars, boats, motorcycles, shares, superannuation, liabilities (mortgage, credit cards) and financial resources (family trusts). The property, liabilities and financial resources of the relationship can be in joint names, your name only or your partner’s name only.
If you and your partner come to an agreement on how you intend to divide your asset pool then you can enter into Consent Orders or a Financial Agreement to make the agreement legally binding.
If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act.
Please reference Sections 48 – 59 inclusively.
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If you are unable to negotiate a divorce and property settlement of your assets then mediation and collaborative practice may provide assistance to you to negotiate this settlement.
If however by negotiation you are unable to resolve the division of your assets then it may be necessary to apply to the Family Court to obtain a judgment on the division of such assets.
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